Opinion
June 19, 1989
Adjudged that the petition is granted, on the law, without costs or disbursements, to the extent that the petitioner is awarded back pay for the period of his suspension in excess of 30 days which is not the result of any delay attributable to him less any compensation he may have earned in any other employment or occupation or any unemployment compensation received by him during that period; the determination is otherwise confirmed, the proceeding is otherwise dismissed on the merits, and the matter is remitted to the respondents for a determination of the amount of back pay, if any, to which the petitioner is entitled.
There is substantial evidence in the record to support the determination that the petitioner, while employed as a housing inspector, failed to issue two summonses for violations of the Babylon Town Code with respect to outstanding violations at two sites that he purportedly visited. There is also substantial evidence to support a finding that the petitioner, in contravention of standard practices of his agency, issued a summons to an individual who was not in fact the owner of record of the premises in question. Finally, there is substantial evidence to support the finding that the petitioner, while he was supposed to be engaged in the performance of his duties, used a town car as transportation to court on a personal matter (see, 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 N.Y.2d 176).
In arriving at the penalty of dismissal, the Commissioner of the Department of Planning and Development of the Town of Babylon appropriately considered petitioner's incompetence and misconduct as evidencing an indifference to his public trust and job responsibilities. We do not find the penalty to be "shocking to one's sense of fairness" (see, Matter of Turner v. Simpson, 60 N.Y.2d 959, 961; Matter of Pell v. Board of Educ., 34 N.Y.2d 222).
Even though petitioner was subsequently dismissed, he is entitled to back pay for the period of his suspension in excess of 30 days which is not the result of any delay attributable to him, less sums he earned from other employment and any unemployment benefits he received during the period in question (see, Gerber v. New York City Tr. Auth., 42 N.Y.2d 162; Matter of Horton v. Kammerer, 84 A.D.2d 841). We therefore remit the matter to the respondents for a determination of the amount of back pay, if any, the petitioner is entitled to receive.
We have considered the petitioner's other contentions and find them to be without merit. Brown, J.P., Sullivan, Harwood and Rosenblatt, JJ., concur.